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Chapter V3: ESA - effect of work

Contents
V3001:Introduction
V3002:The general rule
Definitions
V3005:Meaning of week
V3006:Meaning of work
V3007:Meaning of work as a councillor
V3008:Meaning of relative
V3009:Meaning of close relative
V3015:Exceptions to the general rule
V3018:Work
V3022:Community service
V3030:Claimants who do certain categories of work
V3031:Work as a councillor
V3034:Member of the FtT
V3035:Domestic tasks and care of a relative
V3040:Caring for another person
V3044:Activities undertaken during an emergency
V3050:Claimants receiving certain treatment
V3051:Work in the first or last week of LCW
V3052:Linking rule
V3053:Night shift workers
Exempt work
V3055:Categories of exempt work
V3056:Permitted work
V3058:Calculation of weekly earnings
V3065:Permitted work lower limit
V3066:Supported permitted work
V3070:Community Interest Companies
V3075:Permitted work higher limit
V3076:Permitted work period
V3080:Permitted work (LCWRA)

Calculating the hours for permitted work higher limit and permitted
V3081:work (LCWRA)
V3090:Self-employed test trading
V3091:Voluntary work
V3093:Magistrates
V3094:Work placement
National Minimum Wage rates .............................................................. Appendix

Chapter V3: ESA - effect of work

V3001 Introduction

This Chapter gives guidance on entitlement to ESA when a claimant works.

V3002 The general rule V3015 V3030 V3040 V3055 V3065 V3066

Unless V3015 et seq applies, a claimant is treated as not entitled to ESA in any
week in which they work (1) (the "general rule").
1 ESA Regs 13, reg 37(1)

[V3003-V3004]

Definitions

V3005 Meaning of week

Week, for the purposes of a claimant who works, is a week in respect of which a
claimant is entitled to ESA (1).
Note: DMs should not confuse this definition with the general definition of week (2).
1 ESA Regs 13, reg 37(8); 2 reg 2

V3006 Meaning of work V3018 V3040

Work is any work which a claimant does, whether or not it is undertaken in
expectation of payment (1).
1 ESA Regs 13, reg 37(8)

V3007 Meaning of work as a councillor V3031

Work as a councillor includes work as a member of specified bodies (1) of which a
claimant is a member by reason of being a councillor (2) (see V3032).
1 Local Government Act 72, s 177(1); Local Government (Scotland) Act 73, s 49(1) & (1A)
2 ESA Regs 13, reg 37(8)

V3008 Meaning of relative V3092

A relative is a close relative, grand-parent, grand-child, uncle, aunt, nephew or
niece (1).
1 ESA Regs 13, reg 2

V3009 Meaning of close relative

A close relative is (1)
1. a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-
parent, step-son, step-son-in-law, step-daughter, step-daughter-in-law,
brother, brother-in-law, sister, sister-in-law and
2. similar relationships arising through civil partnerships (2).

1 ESA Regs 13, reg 2; 2 CP Act 04, s 246

V3010

"Brother" and "sister" includes half-brother and half-sister. A child who is adopted
becomes a child of the adoptive parents and the brother or sister of any other child
of those parents. The adopted child stops being the child of, or the brother or sister
of any children of, the natural parents. Whether an adopted person is a close relative
of another person depends on the legal relationship not the blood relationship (1).
1 R(SB) 22/87

[V3011-V3014]

V3015 Exceptions to the general rule V3002 V3078

V3002 gives guidance on the general rule that a claimant is treated as not entitled to
ESA in any week in which they work (1).

1 ESA Regs 13, reg 37(1)

V3016

However, there are exceptions to the general rule. These exceptions are claimants who
1. do certain categories of work (1) (see V3030 et seq)
2. are receiving certain treatment (2) (see V3050 and ADM Chapter U2)
3. do work in the first or last week of LCW (3) (see V3051).

1 ESA Regs 13, reg 37(2); 2 reg 37(3); 3 reg 37(4)

V3017

A claimant who is treated as not entitled to ESA in any week in which they work may
be treated as not having LCW (1) (see ADM Chapter U2).
1 ESA Regs 13, reg 38(1)

V3018 Work

Work (1) has the meaning in V3006. It is not employment and there does not have to
be a legal contractual relationship.
1 ESA Regs 13, reg 37(8)

Example

A publican hires James to conduct two quiz nights per week and expects to pay him
for doing this. There is no written contract and James does not usually accept
payment when it is offered by the publican. This is work not a hobby because it is
done for the commercial enterprise of the publican and James feels morally obliged
to the publican to fulfil his agreement with him.

V3019

Negligible work is considered under a general principle that the law is not concerned
with trivialities. This principle is called "de minimis". Negligible amounts of work can
be disregarded before the specific rules are applied so that the claimant is not
regarded as working on the day or days in question.

V3020

Whether work on part of a day is negligible depends on its proportion to the normal
working hours, the type of work and the effort required in relation to full normal
duties (1). When deciding if work is "de minimis", the DM should consider the relevant
case law.

1 R(S) 2/61

V3021

The question of negligible work can arise in self-employment when a sick person
can still attend to some aspects of a business. Work cannot be considered negligible
if it contributes materially to the running of the business or involves a significant
amount of supervisory or administrative work. For example if the person occasionally
does small jobs such as signing cheques, the contribution to the business can be
disregarded as negligible (1).
1 R(S) 5/51; R(S) 13/52; R(S) 24/52; R(S) 34/52; R(S) 37/52; R(S) 8/55;
R(S) 2/61; R(S) 2/74; R(S) 10/79

V3022 Community service

Community service should not be regarded as work. Courts will take account of a
person's limited capability and the type and extent of activities prescribed by the
court should be appropriate to the limited capability.

[V3023-V3029]

V3030 Claimants who do certain categories of work V3016

The general rule in V3002 does not apply to a claimant who
1. works as a councillor (1) or
2. undertakes duties on not more than one full day or two half-days a week as a
member of the FtT who is eligible for appointment under specified legislation (3)
or
3. undertakes domestic tasks in their own home or takes care of a relative (3) or
4. undertakes duties in caring for another person who is accommodated with
them under arrangements for
4.1 fostering or
4.2 providing respite care
and they receive payment for doing so (4) or
5. undertakes any activity during an emergency to
5.1 protect another person or
5.2
prevent serious damage to property or livestock (5) or
6. does work which is exempt work (6) (see V3055* et seq).
1 ESA Regs 13, reg 37(2)(a); 2 reg 37(2)(b);
The Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008;
3 ESA Regs 13, reg 37(2)(c); 4 reg 37(2)(d) & (7); 5 reg 37(2)(e); 6 reg 37(2)(2)(f) & reg 39(1)

V3031 Work as a councillor

Work as a councillor has the meaning (1) in V3007.

1 ESA Regs 13, reg 37(8)

V3032 V3007

A
councillor (1) is
1. in England and Wales a member of
1.1
a London borough council or
1.2
a county council or
1.3
a county borough council or
1.4
a district council or
1.5
a parish or community council or
1.6
the Common Council of the City of London or
1.7
the Council of the Isles of Scilly or
2. in Scotland a member of a council for a local government area (2).

1 ESA Regs 13, reg 2; 2 Local Government (Scotland) Act 1994, s 2

V3033

Guidance on the effect of councillors' allowances on ESA is in ADM Chapter V1
(ESA amounts).

V3034 Member of the FtT

A claimant who is a member of the FtT who is eligible for appointment under
specified legislation (1) (see ADM Chapter A6) is exempt from the general rule only
when they undertake duties on not more than one full day or two half-days a week (2).
If a claimant undertakes such duties for a longer period, they will be treated as not
entitled to ESA.
1 The Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008;
2 ESA Regs 13, reg 37(2)(b)

V3035 Domestic tasks and care of a relative

To be exempt from the general rule, domestic tasks must be carried out in the
claimant's own home. Domestic tasks is not defined but means "of the home,
household or family affairs". Examples of domestic tasks are preparing and cooking
food, shopping, cleaning, washing clothes or dishes, making beds.

V3036

In addition to taking place in the claimant's own home a domestic task must relate to
the claimant's home, household or family affairs. Personal care such as attending to
bodily functions or supervision or education of children, are domestic tasks if carried
out for a member of the family (including a close relative). If carried out for others,
the tasks do not relate to the home, household or family affairs. This includes
providing accommodation and food to students (1) and other activities carried out in the
claimant's home, such as child minding other than of relatives, or tuition.

1 R(IB) 1/03

V3037

Although child minding may include some tasks which could be said to be domestic,
the activity as a whole does not relate to the home, household or family affairs.

V3038

Care means to provide for or look after and should be interpreted broadly. It includes
personal care, such as bodily functions but can also include domestic tasks such as
cooking, shopping, cleaning and supervision of children.

[V3039]

V3040 Caring for another person

Caring for other people's children or adults comes within the definition of work (1) (see V3006). However, claimants undertaking such caring are exempt from the general
rule in V3002 (2).

1 ESA Regs 13, reg 37(8); 2 reg 37(2)(d) & (7)

V3041 V3042

The general rule does not apply when the claimant receives payment (1)
1. for children placed with them by
1.1 a
LA (2) or
1.2 a voluntary organisation (3) or
2. for a person who is temporarily in the claimant's care where the payment is
made by
2.1 the NHS Commissioning Board (4) or
2.2 a LA (but not where the payment is HB)5 or
2.3 a voluntary organisation or
2.4 a clinical commissioning group (6) or
2.5 a Local Health Board (7).
1 ESA Regs 13, reg 39(7); 2 Children Act 89, s 22C(2), (3), (5) or (6)(a); Children (Scotland) Act 95, s 26;
Looked After Children (Scotland) Regs 09, reg 33 & 51; 3 Children Act 89, s 59(1)(a); 4 NHS Act 06, s 1H;

5 NA Act 48, s 26(3A); 6 NHS Act 06, s 14D; NHS (Wales) Act 06, s 11

V3042

The types of payments in V3041 include payments for adult placement schemes and
foster parenting. Looking after a child or children other than relatives includes
fostering and pre-adoption situations. In these cases the child is living as part of the
family and their care will normally consist of domestic tasks in the claimant's home
unless the care includes activities which do not relate to the home, household or
family affairs.

V3043

Placement of difficult, mentally ill or sick children, or children with a learning difficulty,
attracts an allowance as well as expenses in recognition of the extra supervision,
education or care necessary. However, any such placement with a claimant will not
prevent that claimant from being exempt from the general rule.

V3044 Activities undertaken during an emergency

The general rule does not apply to any activity undertaken during an emergency to
1. protect another person or
2. prevent serious damage to property or livestock (1).
1 ESA Regs 13, reg 37(2)(e)

[V3045-V3049]

V3050 Claimants receiving certain treatment V3016

The general rule does not apply to claimants who receive certain treatment (1).
Note: See ADM Chapter U2 for guidance on certain treatment.
1 ESA Regs 13, reg 37(3); reg 40

V3051 Work in the first or last week of LCW V3016 V3052 V3053

A claimant who works in a week which is
1. the first week in which the claimant becomes entitled to a benefit, allowance
or advantage because of LCW in any period (1) or
2. the last week in which the claimant
2.1 has LCW or
2.2 is treated as having LCW (2)
is treated as not entitled to ESA only on the actual day or days in that week on which
the claimant works (3).
Note: See ADM Chapter U2 for guidance on the meaning of a benefit, allowance or
advantage.
1 ESA Regs 13, reg 37(4)(a); 2 reg 37(4)(b); 3 reg 37(4)

Example

Cassandra is in receipt of ESA. Her benefit week is Wednesday to Tuesday. She
starts work which comes within the general rule on a Monday. The DM decides that
Cassandra is entitled to ESA until Sunday of that week.

V3052 Linking rule

When considering V3051, DMs should note that the linking rule (see ADM Chapter
U1) does not apply for the purposes of deciding the beginning or end of any period
of LCW (1).
1 ESA Regs 13, reg 37(5) & 86

V3053 Night shift workers

When V3051 is being considered and the claimant is a night shift worker, the DM
should decide the day or days the claimant works under the rules for night shift
workers (1) (see ADM Chapter U1).
1 ESA Regs 13, reg 24 & 37(6)

V3054

Exempt work

V3055 Categories of exempt work V3030

The general rule (see V3002) does not apply to claimants who do exempt work. The
categories of exempt work are
1. PWK (1) (see V3056 et seq)
2. work done whilst test trading as a S/E earner (2) (see V3090)
3. voluntary
work (3) (see V3091)
4. work done in a work placement (4) (see V3094).
1 ESA Regs 13, reg 39(1)(a)-(c); 2 reg 39(1)(d); 3 reg 39(1)(e); 4 reg 39(1)(f)

V3056 Permitted Work V3055

There are four types of PWK, each with its own conditions. Claimants can only be in
one type of PWK at any one time. It is not always necessary to have medical
approval to do PWK. If claimants have two or more jobs the hours and earnings are
added together to determine if the work is exempt.

V3057

The four types of PWK are
1. PWLL (1) (see V3065)
2. SPW (2) (see V3066 et seq)
3. PWHL (3) (see V3075 et seq)
4. PWK
(LCWRA)4 (see V3080).
1 ESA Regs 13, reg 39(1)(a); 2 reg 39(1)(b); 3 reg 39(1)(c)(i); 4 reg 39(1)(c)(ii)

V3058 Calculation of weekly earnings

Weekly earnings limits apply in PWK (1). The DM should calculate a claimant's
earnings under the normal rules for calculating earnings (2) (see ADM Chapters V4
and V5).

1 ESA Regs 13, reg 39(1)(a)-(c); 2 reg 76 - 84

V3059

Where the weekly earnings limit is 16 x NMW, this means the highest rate of NMW
as specified in legislation (1) (see Appendix). Where 16 x NMW includes an amount
less than
1. 50p, the amount is rounded up to the nearest 50p or
2. 1, but more than 50p, the amount is rounded up to the nearest 12.
1 The National Minimum Wage Regulations 1999, reg 11; 2 ESA Regs 13, reg 39(4)

Example

Meryl is entitled to ESA, and starts work on 9.9.13 for 15 hours weekly. The NMW is
15 x 6.19 = 92.85. As this includes an amount which is more than 50p and less
than 1, it is rounded up to 93.00. The DM uses this amount to consider whether
Meryl's work is exempt work.

[V3060-V3064]

V3065 Permitted work lower limit V3057

Claimants can work as long as their earnings in any week are no more than 201
without the general rule in V3002 applying. There is no limit to the period during
which they can do this work. This is known as PWLL. Claimants move out of this
type of PWK if their earnings in any week are more than 20.
1 ESA Regs 13, reg 39(1)(a)

V3066 Supported permitted work V3057

Claimants can do SPW (1) as long as their earnings in any week are no more than 16 x
NMW without the general rule in V3002 applying. There is no limit to the period
during which they can do this work as long as they continue to meet the
requirements for SPW.

1 ESA Regs 13, reg 39(1)(b)

V3067

SPW is appropriate for claimants whose disability has stable and established effects
with a significant impact on their ability to learn or sustain a traditional job which will
1. always or
2. for a number of years
prevent them from working more than a few hours each week.

V3068

To be SPW, the work must be
1. part of a treatment programme done under medical supervision while the
claimant is
1.1 an in-patient or
1.2 regularly attending as an out-patient
of a hospital or similar institution (1) (see ADM Chapter U2) or
2. supervised by a person employed by
2.1 a public or local authority or
2.2 a voluntary organization or
2.3 a Community Interest Company
which provides or finds work for persons with disabilities (2).

1 ESA Regs 13, reg 39(1)(b)(i); 2 reg 39(1)(b)(ii)

V3069

A voluntary organization (1) is one that carries out activities otherwise than for profit. It
does not include public or local authorities.
1 ESA Regs 13, reg 2

V3070 Community Interest Companies

A CIC, as established under relevant legislation (1), is a profit making organisation.
However, it is restricted to using its assets and profits for the benefit of the
community rather than for the benefit of the owners of the company. DMs should
view the official CIC website for a current list of such companies
(www.cicregulator.gov.uk).

1 The Companies (Audit, Investigations and Community Enterprise) Act 2004

V3071

The support worker must direct and oversee the performance of the claimant
regularly although the frequency of contact is not laid down. Some claimants may
require daily contact; with others it may be as infrequent as, for example, monthly.
The extent and the frequency of the support may vary according to the progress of
each individual claimant.

V3072

The supervision must be more than the normal supports put in place by employers.
The support worker will, at least initially, have close involvement in the day to day
routine of the claimant and, by implication, with the employer. This involvement will
be ongoing at regular intervals according to each claimant's circumstances.

Example 1

Peter's appointee returns form PW (1). Peter wants to work in a local market garden
for four hours on a Friday afternoon, earning 17 a week. Part 3 of the form PW (1)
has been completed by Peter's caseworker who works for Kaleidoscope NSF. It is a
charitable organization that supports disabled people in work through a Social Firm.
Peter's caseworker will visit him regularly and this support will continue. The DM
determines that even though the work is for less than 20 a week and could be
PWLL, it should be SPW because the work is supported. He can do this work
without the general rule applying for as long as his earnings are no more than the set
weekly limit and the support continues.

Example 2

Sarah's appointee returns form PW (1). It states that Sarah who has Down's
Syndrome intends to start work. The work is in a supermarket collecting trolleys from
the car park and stacking shelves. She will be working for four hours a day each
Wednesday and Thursday earning 40 a week. Sarah's work has been arranged by
Bexley Twofold, an organization funded by Bexley Council and Mencap to arrange
work for people with disabilities. Sarah's support worker visits regularly and this
support will continue. The DM determines that the work she is doing is SPW. She
can do this work without the general rule applying for as long as the earnings remain
no more than the set weekly limit and the support continues.

[V3073-V3074]

V3075 Permitted work higher limit V3057

PWHL is work done for less than 16 hours, or an average of less than 16 hours (see V3081 et seq) in any week, for which the earnings do not exceed 16 x NMW. It can
only be done during a work period, known as the PWP, and certain conditions must
be satisfied before another PWP can start (2) (see V3078).
1 ESA Regs 13, reg 39(1)(c)(i); 2 reg 39(7)

V3076 Permitted work period

The work period or PWP begins on the first day on which any PWHL is undertaken,
and continues for a period of 52 weeks, whether or not any further PWHL is
undertaken during that period (1).

1 ESA Regs 13, reg 39(6)

V3077 V3078

PWHL can be undertaken during a work period or PWP provided that
1. the claimant has not previously done PWHL or
2.
since the beginning of the last work period or PWP, the claimant has ceased
to be entitled to a relevant benefit for a continuous period exceeding 12 weeks
or
3. not less than 52 weeks have elapsed since the last work period or PWP (1).
Note
:
A relevant benefit is ESA or credits (2).
1 ESA Regs 13, reg 39(7); 2 reg 39(6)

Example 1

John is in receipt of ESA. On 11.8.14 he starts working for 10 hours a week with
earnings of 62.00 a week. This is PWHL. John has not previously done any PWHL.
His PWP runs from 11.8.14 to 9.8.15. John last works on 21.11.14 but his PWP
continues until 9.8.15 even if no further work is done.

Example 2

Susan claims ESA from 3.11.14. On her claim form she reports that she has been
working for the last five years and continues to work. She earns 40 for five hours
work on Thursday each week. This work is PWHL. The 52 week period starts on
Thursday 6.11.14, the first day on which she works, and runs until 4.11.14
regardless of whether the work continues.

V3078 V3075

Claimants who have previously done PWHL will have to satisfy the conditions in V30772. or 3. before they can have a further period of PWHL.

Example 1

David was in receipt of ESA and doing PWHL that started on 3.11.14. From
24.11.14 his hours and earnings increase and his work is no longer exempt. He did
not fall within any of the exceptions to the general rule (see V3015 et seq et seq).
David is no longer entitled to ESA.
At the end of February 2015 David's hours and earnings drop to within the limits for
PWHL and he reclaims ESA on 9.3.15. Because he has had a break of more than
twelve weeks during which he was not entitled to a relevant benefit he starts a new
PWP from 9.3.15 ( he works on that day), and the work he is doing is PWHL.

Example 2

Diane is in receipt of ESA. On 28.8.15 she starts work of five hours a week earning
31. She last did work which is PWHL from 6.1.14 to 30.10.14 and has not had a
break in her entitlement to ESA. Her work is not PWHL because 52 weeks have not
elapsed since the end of her last PWP on 4.1.15.

Example 3

Catherine is entitled to ESA, and started PWHL on 10.3.14. Her entitlement to ESA
ends on 19.5.14 after she is found not to have LCW following application of the
WCA. Her condition deteriorates, and she makes a further claim to ESA from 4.8.14.
She is still doing the same work as in the previous PLCW, which links to the current
PLCW. The DM determines that this is PWHL, and that as there has not been a
break in entitlement of more than 12 weeks since the last period of specified work
began, the PWP will end on 8.3.15.

[V3079]

V3080 Permitted work (LCWRA) V3057

Claimants who have or are treated as having LCWRA can work for an indefinite
period if they
1. work for less than 16 hours, or an average of less than 16 hours (see V3081
et seq), in a week and
2.
earn no more than 16 x NMW a week (1).
1 ESA Regs 13, reg 39(1)(c)(ii)

V3081 Calculating the hours for permitted work higher limit and permitted work (LCWRA) V3075 V3080

Where no recognizable cycle has been established, it is
1. the number of hours or
2. the average number of hours where the hours worked are likely to fluctuate
a claimant is expected to work in a week (1).

1 ESA Regs 13, reg 39(2)(a)

V3082

Where the number of hours a claimant works fluctuate and there is a recognizable
cycle, it is over one complete cycle of work. This complete cycle includes periods in
which the claimant does no work but excludes other absences such as holidays or
sickness (1).

1 ESA Regs 13, reg 39(2)(b)(i)

V3083

Where the number of hours a claimant works fluctuate and there is no recognizable
cycle, it is
1. over the five week period or
2. any other period to enable the average hours to be decided more accurately
immediately before the date of claim, or the date a supersession decision is made (1).
1 ESA Regs 13, reg 39(2)(b)(ii); SS Act 98, s 10

[V3084-V3089]

V3090 Self-employed test trading V3055

Work done whilst receiving help to become a S/E earner is exempt work (1) as long as
the programme or arrangement the claimant is on is set up under certain legislation (2).
1 ESA Regs 13, reg 39(1)(d); 2 E&T Act 73 s 2; Enterprise & New Towns (Scotland) Act 1990, s 2

V3091 Voluntary work V3055

Voluntary work is where a claimant receives no payment of earnings and where that
claimant is
1. engaged by a charity or voluntary organization or
2. a volunteer
where the DM is satisfied that it is reasonable for the claimant to provide the service
free of charge is exempt work (1).

1 ESA Regs 13, reg 39(1)(e)

V3092

A claimant who is working but does not accept a wage is not necessarily a volunteer.
The work must be other than for a relative (see V3008) and the only payment
1. received or
2. due to be paid
is expenses reasonably incurred in connection with the work (1).
1 ESA Regs 13, reg 39(6)

V3093 Magistrates

Magistrates who only receive expenses should be considered as volunteers.

V3094 Work placement V3055

Claimants who work in the course of participating in a work placement approved in
writing by the DM before the placement starts are in exempt work (1).

1 ESA Regs 13, reg 39(1)(f)

V3095

A work placement is practical work experience with an employer, which is neither
paid nor undertaken in expectation of payment (1).

1 ESA Regs 13, reg 39(6)

V3096

A claimant who is participating in a work placement must still provide information or
evidence to show whether they have LCW and are required to comply with the WCA
process 1 (see ADM Chapter U2).
1 ESA Regs 13, reg 17

[V3097-V3999]

Appendix
National Minimum Wage rates
Date
Hourly rate
1.10.10 5.93
1.10.11 6.08
1.10.12 6.19